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be said almost to compass every human action; and in its minute details, to measure every human duty. If we contemplate it in the highest order of subjects, which it embraces, it can scarcely be surpassed in dignity. It searches into and expounds the elements of morals and ethics, and the eternal law of nature, illustrated and supported by the eternal law of revelation. It is in this sense, that it has constituted the panegyric of philosophers and sages in almost every age. It is in this sense, that Cicero has spoken of it, in a passage, which is upon the lips of every scholar: “Est quidem vera lex recta ratio, naturæ congruens, diffusa in omnes, constans, sempiterna, quæ vocet ad officium jubendo, vetando a fraude deterreat, quæ tamen neque probos frustra jubet aut vetat, nec improbos jubendo aut vetando movet. Huic legi nec obrogari fas est, neque derogari ex hac aliquid licet, neque tota abrogari potest. Nec vero, aut per senatum aut per populum, solvi hac lege possumus.' It is in this sense, also, that the genius of Sir William Jones, rising into poetical enthusiasm, has proclaimed, that
Sovereign law, the state's collected will,
O’er thrones and globes elate
Sits empress, crowning good, repressing ill.” But if we contemplate it in a narrower view, as a mere system of regulations for the safety and harmony of civil society; as the instrument of administering public and private justice ; as the code, by which rights are ascertained, and wrongs redressed ; by which contracts are interpreted, and property is secured, and the institutions, which add strength to government, and solid happiness to domestic life, are firmly guarded ; — if, I say, we contemplate it in this narrower view, its dignity may in some measure be lessened, but its design will yet appear sufficiently grand, and its execution sufficiently difficult, to have strong claims upon the gratitude and admiration of mankind.
The common law purports to be such a system of jurisprudence. By the common law is sometimes understood that collection of principles, which constitutes the basis of the administration of justice in England, in contradistinction to the maxims of the Roman code, which has universally received the appellation of the civil law. The latter has been adopted, or, if I may so say, inosculated, into the juridical polity of all continental Europe, as a fundamental rule. The former is emphatically the custom of the
Cic. de Repub. Lib. jii. § 22. See also, Cic. de Legg. Lib. i. $ 6.
realm of England, and has no authority beyond her own territory, and the colonies, which she has planted in various parts of the world. It is no small proof of its excellence, however, that where it has once taken root, it has never been superseded ; and that its direct progress, or silent sway, has never failed to obliterate the attachment to other codes, whenever the accidents of conquest or cession have brought it within the reach of popular opinion. But there is another sense, (which is the most usual sense,) in which it is called the common law, to distinguish it from the statute law, or the positive enactments of the legislature. In this sense, the common law is the lex non scripta, that is, the unwritten law, which cannot now be traced back to any positive text; but is composed of customs, and usages, and maxims, deriving their authority from immemorial practice, and the recognitions of courts of justice. Thus, the right of primogeniture, which is a fundamental rule of inheritances in England, does not depend upon any known statute, but upon the simple custom of the realm, of such high antiquity, that history does not reach its exact origin. Much, indeed, of this unwritten law may now be found in books, in elementary treatises, and in judicial decisions. But it does not derive its force from these circumstances. On the contrary, even judicial decisions are deemed but the formal promulgation of rules antecedently existing, and obtain all their value from their supposed conformity to those rules.
When our ancestors emigrated to America, they brought this common law with them, as their birthright and inheritance ; and they put into operation so much of it, as was applicable to their situation. It became the basis of the jurisprudence of all the English colonies; and, except so far as it has been abrogated or modified by our local legislation, it remains to this very hour the guide, the instructer, the protector, and the ornament of every state within this republic, whose territory lies within our boundaries settled by the treaty of peace of 1783. May it ever continue to flourish here ; for it is the law of liberty, and the watchful and inflexible guardian of private property and public rights.
It is of this common law, in its largest extent, that the Law Institution in this University proposes to expound the doctrines and diversities, and thus to furnish the means of a better juridical education to those, who are destined for the profession, as well as to those, who, as scholars and gentlemen, desire to learn its general principles.
Nor let any scholar or gentleman imagine, that the study is little worthy his attention, unless he is to engage in it for professional objects. I do not exaggerate its value, when I express the deliberate opinion, that there is not within the compass of human attainment any science, which has so direct a tendency as this, to strengthen the understanding, to enlarge its powers, to sharpen its sagacity, and to form habits of nice and accurate discrimination. Sir James Mackintosh, an elegant scholar, as well as a very competent judge, has said,* that “More understanding has, perhaps, been in this manner exerted to fix the rules of life, than in any other science ; and it is certainly the most honorable occupation of the understanding, because it is the most immediately subservient to general safety and comfort.” If this were a question dependent upon mere authority, perhaps testimony more unexceptionable to the general scholar might be drawn from other sources. Dr. Johnson, with his accustomed vigor of expression has stated, that “ Law is the science, in which the greatest powers of the understanding are applied to the greatest number of facts.” And Mr. Burke, himself an orator and statesman of the most enlarged research, has not hesitated to declare, that it is “One of the first and noblest of human sciences; a science, which does more to quicken and invigorate the understanding than all other kinds of learning put together." +
But there is little need to appeal to the testimonies of the living or the dead upon such a topic. Whoever will take the trouble to reflect upon the vast variety of subjects, with which it is conversant, and the almost infinite diversity of human transactions, to which it applies; whoever will consider, how much astuteness and ingenuity are required to unravel or guard against the contrivances of fraud and the indiscretions of folly, the caprices of the wise and the errors of the rash, the mistakes of pride, the confidence of ignorance, and the sallies of enterprise ; will be at no loss to understand, that there will be ample employment for the highest faculties. If he will but add to the account, that law is a science, which must be gradually formed by the successive efforts of many minds in many ages; that its rudiments sink deep into remote antiquity, and branch wider and wider with every new generation; that it seeks to measure the future by approximations to certainty, derived solely from the experience of the past ; that it must for ever be in a state of progress, or change, to adapt itself to the exigencies and changes of society; that, even when the old foundations remain firm, the shifting channels of business must often leave their wonted beds deserted, and require new and broader substructions to accommodate and support new interests ;* if, I say, he will but add these things to the account, it will soon become matter of surprise, that even the mightiest efforts of genius can keep pace with such incessant demands; and that the powers of reasoning, tasked and subtilized, as they must be, to an immeasurable extent, should not be absolutely overwhelmed in the attempt to administer justice.
* Introductory Discourse on the Study of the Law of Nature and Nations. p. 62, (3d edition.)
+ Speech on American Taxation, 1971,
From its nature and objects, the common law, above all others, employs a most severe and scrutinizing logic. In some of its branches it is compelled to deal with metaphysical subtilties and abstractions, belonging to the depths of intellectual philosophy. From this cause it has sometimes been in danger of being enslaved by scholastic refinements, by the jargon of the old dialectics, and the sophisms of over curious minds. It narrowly escaped shipwreck in the hands of the schoolmen of the middle ages; and for a while was almost swallowed up in the quicksands of the feudal system. If it had not been, that the common law necessarily dealt with substances, instead of shadows, with men's business, and rights, and inheritances, and not with entities and notions, it would have shared the fate, or justified the satire pronounced upon metaphysical inquiries, that those, who have attempted to sound its depths,
“ In that unfathomable gulf were drowned.” But common sense has at all times powerfully counteracted the tendency to undue speculation in the common law, and silently brought back its votaries to that, which is the end of all true logic, the just application of principles to the actual concerns of human life. One cannot but smile, in the present times, at some of the reasoning, and some of the fictions, which spread themselves, here and there, in small veins in the system. We are gravely told, for instance, by Bracton, in which he is followed by Lord Coke, that the true reason, why by the common law a father cannot inherit real estate by descent from his son, is, that inheritances are heavy, and descend, as it were, by the laws of gravitation, and cannot reascend.* We are again told, that, when the title to an estate is suspended upon future contingencies, the inheritance is in the mean time in abeyance, that is, (as we are taught by the accompanying explanations,) the inheritance is in gremio legis, or in nubibus, in the bosom of the law, or in the clouds, which seems to mend the matter exceedingly in point of plainness. And, again, when an estate is conveyed to trustees to serve existing uses, and future contingent uses also, we are told, that though a seisin is necessary to feed them, and it be now exhausted; yet, happily for us, there remains a possibility of seisin, a scintilla juris, which kindles at the very moment the new uses spring into being, and by its vital power executes at once the possession of the estate to those uses, by some sort of legal legerdemain.t Shakspeare has immortalized by his genius the report of a case in that book of painful learning, Plowden's Commentaries, I in which Lady Margaret Hales, by the suicide of her husband, lost an estate by forseiture to the crown, which she held jointly with him. One of the learned judges upon that occasion, in order to establish the legal conclusion, that the party killed himself in his lifetime, reasoned in this manner : felony is attributed to the act, which act is always done by a living man, and in his lifetime ; for Sir James Hales was dead, and how came he to his death? It may be answered, By drowning. And who drowned him ? Sir James Hales. And when did he drown him? In bis lifetime. So that Sir James Hales, being alive, caused Sir James Hales to die ; and the act of the living man was the death of the dead man. And then for this offence it is reasonable to punish the living man, who committed the offence, and not the dead man. But how can he be said to be punished alive, when the punishment comes after his death?” &c. &c.
* See Lord Hale's noble Discourse on the Amendment of the Law, ch. 3.
But, apart from a few blemishes of this sort, which belong, indeed, rather to the studies of the age than to the law, and are now so harmless, that they serve little more than to give point to some sarcasm upon the profession, it is certain, that the common law follows out its principles with a closeness and simplicity of reasoning, which approach, as near as any artificial or moral deductions can, to the rigor of demonstration.
* “ Descendit itaque jus, quasi ponderosum quid cadens deorsum recta lineå, vel transversali, et nunquam reascendit eâ viâ quâ descendit.” Bracton, lib. 2, ch. 29; Co. Litt. 11 ; 2 Bl. Com. 212.
| Chudleigh's case (1 Co. Rep. 120) contains some curious reasoning on this subject.
Plowden's Com. 258, 262.